Ken Anderson gets to have “Honorable” put before his name because of tradition, even in the caption of the probable cause order listing the offenses with which he is charged :

At the hands of the Honorable Ken Anderson, Michael Morton spent nearly 25 years in prison for a murder he didn’t commit.  Anderson was the prosecutor who put him there by concealing exculpatory evidence, and it wasn’t until DNA evidence exonerated Morton that Anderson’s fabulous life came crashing down.

Way down in the findings of fact, you come across this:

42. Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and former prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty. (RR 6:116:18-6:117:4 and RR 6:94:4-24).

43. Mr. Anderson consciously chose to impair the availability of the exculpatory evidence so that he could obtain the conviction of Mr. Morton for murder.

44. Thus, Mr. Anderson intended to prevent defense counsel from relying upon the Green Van Report and Kirkpatrick Transcript and his concealment of such evidence during the prosecution of Mr. Morton constitutes a violation of section 37.09 of the Texas Penal Code.

My pal, Tamar Birckhead, successfully defended shoe bomber Richard Reid.  By successfully, I mean that she kept him alive. When it comes to defending accused terrorists, even ones as ridiculously incompetent at their mission as Reid, success is defined differently.

When the media needed meat to grind out its media sausage, Tamar was an obvious choice.  She knew what she went through, what the experience of defending someone under the microscope of terrorism was like.  And having gone from federal defender to UNC clinical lawprof, she had the opportunity and curriculum vitae to do the job.

In the  Boston Herald’s initial salvo of handicapping the defense, Tamar led the quote parade with some thoughtful words:

“We know he’s 19 years old, we don’t think he has a criminal record or been in trouble before. There are a lot of people out there that seem to have warm, positive things about him,” said Tamar Birckhead, whose client, Richard Reed, tried to blow an airliner out of the sky but got life by copping a plea. “To predict he’ll get a life sentence is not unreasonable.”

… the baby-faced Tsarnaev can pin the Boston Marathon and last week’s deadly final rampage on his slain big brother and seek mercy as a kid who was easily swayed.

“If the younger brother can shed any light on the circumstances of the older brother’s alleged involvement,” said Jones, “that’s valuable information that the government would want.”

“Nothing about the outcome is assured.”

“This case is ripe for somebody who’s got the courage to stand up and talk about the system and the railroading of criminal defendants,” Fieger said. “He’s been denied the right to a fair trial. And America’s …cheering like it was some kind of sporting event. That wasn’t a very flattering image to the rest of the world. Cheering like they won the World Series.”

Harvard Law professor Alan Dershowitz, a member of OJ Simpson’s “dream team,” said, “The case will go down one of two ways. Either plea bargain … or he’ll want to become a martyr and he’ll admit everything, boast about the crime, seek to justify it and demand the death penalty.”

Yet another attempt to harness the magnificent power of the interwebz demonstrated conclusively that 1000 people can be just as wrong as one.  According to the Atlantic Wire, the reason the FBI release photos of the Tsarnaev brothers was to “fend off Reddit and the  New York Post.”

The social media site and notorious tabloid emerged as front runners in the race to distribute potentially useful but ultimately useless information in the early days of the investigation. The Post identified a Saudi suspect and reported 12 people were killed in the initial blasts. Both were not true. They then identified two people on their Thursday BAG MEN cover as F.B.I. suspects. That was also not true. Meanwhile, Reddit was on the case early looking at every picture possible trying to identify potential suspects. “I’d take thousands of people over a select few very smart investigators any day,” one moderator said of the Boston suspect hunting sub-Reddit. Except, they didn’t find a thing, and only helped add to the confusion surrounding the case. 

Reflecting the two greatest virtues of the digital age, speed and the power of crowds, both the sub-Redditors and the Post managed to screw up royally. Way to go.

As many of us watched the unfolding news reports following the Boston Marathon bombing, it was impossible not to recognize that reports contradicted each other from channel to channel, with breathless anchors trying desperately to fill air time when they had nothing to say. It wasn’t long before the Al Qaeda pundits were out in force, screen shots of Al Jazeera graced the tube and chicken little was screaming about the apocalypse.  A disgraceful display of irrelevance in the rush to pretend otherwise.

But the internet is better than that.  Where the mainstream media is impotent, the virtual citizenry was on the case. 

The F.B.I. wanted to limit the damage being done” to people being wrongly identified by Reddit or the Post or any other amateur sleuthing being done. Once they were able to identify which faces in the crowd were the suspects late on Wednesday afternoon, they had a decision to make. The fear was that if they didn’t head off the Internet’s Sherlock Holmes approach early, then all-out chaos would ensue during the investigation.

People who had nothing whatsoever to do with the bombings were outed and accused. Their names, faces, will be forever emblazoned on the internet as bombers who weren’t.  All because of religion that adores the brilliance of the crowd over actual thought.

This leaves us with two problems, the first being the harm done to those individuals who were accused of being the bombers but weren’t. It’s no small thing for someone to have half the internet accusing them of a horrific crime in perpetuity when there was nothing, absolutely nothing, to support such an accusation.  But hey, it’s the internet. It’s not like anyone believes anything you see there right? Not a future employer. Not an educational institution. Not a potential spouse. Nobody.

The other aspect is that no one is responsible.  When one person points a finger, at least you know who it is. When it’s the accumulated wisdom of thousands, who’s to blame?  The hive mentality of the crowd allows each participant to point to the guy next to him and say, “well, he said so, and I just went along with the crowd.”  There was once a time when the fact that a lot of people said something, thought something, was a less than adequate substitute for being right. Remember that whole earth is flat thing?

There is strength in numbers.  If a lot of people say so, then it must be, no matter how utterly wrong and baseless it is.  And the internet is nothing if not numbers.  You don’t know who these people are, what they know, how smart or stupid they are, how credible they are. You know nothing about them. You have no clue whether they have something worthwhile to offer or are blowing smoke. You don’t know.

And yet, thousands are thrilled to embrace any bit of stupid on the internet at the speed of, well, the internet.

Was it fun playing junior detective?  Was it cool to try to beat out the mainstream media?  You certainly got the Post to bite, even though that’s a bit like waging war against the French. 

But you hurt people who didn’t deserve to be hurt.  Is that what the crowd had in mind?  Are you proud of yourselves for that?

Like any tool, the internet offers vast opportunity to disseminate information in a flash and help to illuminate and inform, particularly where other media sources are invariably behind the time curve or bound up in whatever tangent some assistant producer thought visually appealing hours ago.

But like any tool, it can be used poorly, or be the wrong tool for the job.  In this instance, it was a bludgeon used to pound innocent people.  It was the wrong tool in the wrong hands, and harm ensued.  This is a warning for Redditors, or any other collective group of self-empowered digital detectives with more time than grasp. Crowds are not magic. Crowds don’t inherently know things. People who know things know things, and you aren’t one of them. 

The strength in numbers that comes from crowdsourcing not only magnifies the harm you can do, but covers the responsibility for doing such harm.  Yet everyone who hid behind the numbers is individually responsible for their contribution to digital stupidity and the ruin of an innocent person’s life.  For crying out loud, get a grip and remember that this isn’t a game for your amusement. 

You have no greater right to harm people than anyone else, so if you don’t have a clue what you’re talking about, shut up. Just because you’re part of the crowd doesn’t mean you have anything worthwhile to offer or that you bear no responsibility for doing harm.

Richard Pacheco was having a bad day.  First, he suffered a couple of seizures in his Bronx apartment. That was no fun. Then his girlfriend tried to help by calling 911 for an ambulance to get him to the hospital for medical treatment. That’s where Pacheco’s day got really bad. 

From the Appellate Division, First Department decision :

The evidence adduced at trial disclosed that, in response to an emergency 911 call from plaintiff’s girlfriend that he had suffered one or more seizures, two police officers, two emergency medical technicians, two paramedics, and several fire fighters arrived at plaintiff’s apartment to aid him. After the EMTs examined plaintiff and informed him that he needed to be hospitalized, he became uncooperative. His girlfriend testified that this was the result of another seizure. The police officers testified and other evidence indicates that plaintiff refused to go to the hospital, became extremely violent and agitated, and attacked the personnel trying to help him. The officers further testified that, while kicking out at them, plaintiff broke a dresser in the room.

Thereafter, six or seven responders were needed to restrain plaintiff, handcuff him behind his back, and strap him across his lap and chest into an EMT transport chair. The officers testified that while strapped in the chair, plaintiff still kicked out at them, tried to stand, and bit one officer’s arm and broke his skin. After the officers called for additional assistance, a police sergeant arrived who, after unsuccessfully trying to calm plaintiff down with words, subdued him with a Taser. Thereafter, EMTs were able to transport plaintiff from his upstairs apartment into an ambulance on the street.

“Viewing the evidence in the light most favorable to plaintiff and according [him] the benefit of every reasonable inference . . . we find that it was insufficient as a matter of law to permit the jury to find that the officers used excessive force” (Koeiman, 36 AD3d at 453). Here, given plaintiff’s repeated outbursts and the police officers’ testimony that he was emotionally disturbed, it was reasonable to taser him so that he could be hospitalized. Since the Patrol Guide of the New York City Police Department permits an officer to use a Taser to restrain an emotionally disturbed person who threatens injury to himself or others (Procedure No. 216-05 at 5), the officer’s action comported with acceptable police practice.

In determining whether the use of force was reasonable, the trier of fact must allow for police officers’ frequent need to make “split-second” judgments about how much force is necessary “in circumstances that are tense, uncertain, and rapidly evolving” (Graham, 490 US at 396-397). Other important considerations include whether the suspect actively resisted arrest and posed an immediate threat to the officers’ safety (Vizzari v Hernandez, 1 AD3d 431, 432 [2d Dept 2003], citing Graham, 490 US at 396).

Over at Popehat, Ken White provides a “Miranda round-up” following the Dzhokhar Tsarnaev deluge of all the posts and reports he found worthwhile.  It barely scratches the surface, which comes as no surprise given the vast interest that inevitably follows a news event of such epic proportions, but it’s necessary to exercise discretion under these circumstances lest one’s point be diluted and unworthy efforts find their way into the mix. My  own contribution didn’t make the cut, which is the price one pays for trying.

A comment to Ken’s post by Orvis Barfley (which I believe to be his real name)   caught my eye.

man, this is good stuff.  orin kerr and lawscribe knock it out of the park.  i wonder how long one should expect to need to read this blog before one can reasonably expect to pass the bar.  assuming one should want to, of course.

Frankly, I was quite surprised when Mark Britton, Avvo’s CEO,  asked me to give the closing keynote address at this year’s  Lawyernomics conference.  The reception for  my presentation at Avvo’s last effort at a marketing conference, Avvocating, was luke warm, at least from Avvo’s general counsel, Josh King. who thought it was a bit on the “screed” side.

For those unaware, Lawyernomics is a marketing conference for lawyers.

Generate More Business Online

Learn from technology experts and marketing savvy attorneys

In today’s ultra-competitive business landscape, it’s critical for attorneys to make the most of their digital presence. That’s why you can’t miss Lawyernomics 2013 – a two day legal marketing conference packed with exciting speakers offering the latest online trends and business development knowledge.

So a virtual lawyer walks into a virtual bar…

Most talks begin with a joke to warm up the crowd and get the audience smiling. It’s always better to have a smiling audience than an angry one, especially if there is something to throw close at hand.  But there is no joke that begins with a virtual lawyer walking into a virtual bar.

I suspect there are two reasons for this.  The first is that virtual lawyers have no sense of humor about what they are trying to do.  They spend their time fighting for respectability, and anything that suggests they are joke-worthy cuts them to the quick. 

To be able to embrace a joke with good nature, you have to be reasonably secure in what you do. Virtual lawyers are not.  In the back of their heads, they wonder if the snickers they hear are about them.

The second reason is that there is nothing funny about what they have done to you, my sad and lonely band of brothers, who have the free time to spend in beautiful Las Vegas to learn how to market the crap out of yourselves in the hope that you will soon enjoy the fame and wealth you were promised when that acceptance to Cooley came in the mail.

Last year, I explained to the audience my bona fides, the authority I have to speak to such matters as marketing on the interwebz.  This year, due to the generosity of Josh King’s introduction which attributes such spectacular credibility to me that I stand here blushing, I have nothing more to say.

But I blush up here before you. That makes me stand out among the people who have taken the stage before me.  They don’t blush. There is nothing that could be said, nothing that could be done, that would embarrass them. Call them Thought Leader, Maven, King of the World, perhaps, and they will proudly wear their crown. That is the message of Lawyernomics, that if you don’t seize every opportunity to puff yourself, to make yourself the most greatest lawyer ever, who will?

And that’s where the virtual lawyer comes in.  When I spoke of “virtual lawyers,” you probably thought I was talking about lawyers with a virtual law office, the lawyers who work from their kitchen tables or the local Starbucks, who never meet their clients and share their work in a dropbox in the cloud. 

No, I was talking about something very different. I was talking about the lawyer website, the lawyer blog, the lawyer Avvo profile, who is doing all the things you’ve been told to do to market yourself.  Create a virtual persona that clients will love, will appreciate, will desperate want to hire.  Isn’t that what this is all about? 

Of course, you deserve to have that great marketing profile. You are all fabulous lawyers, dedicated to doing excellent work, dedicated to serving your clients, dedicated to the honor and integrity of your profession.  But those other virtual lawyers, the ones who you think are stealing your clients, taking the food off your table. They are the bad ones, the evil ones, the ones who bring dishonor to your profession.

As we all painfully know, on the internet, nobody knows you’re a dog. They are dogs, but they have websites that make them look like the greatest lawyer since Benjamin Cardozo.  They know nothing about how to represent clients, but ten minutes of skimming a few well-written blogs and they can crank out a post that gives the impression that they have a clue.  Or worse still, they let other people write their posts for them in exchange for a link back to some website that sells Nigerian diet pills. It’s not like potential clients know right from wrong.  But let’s keep that between us, okay?

So these are the bar for each of you, with their search engine optimized anchor text sucking up the google-juice that would otherwise be yours.  It’s breaking your hearts. It’s killing you. These scoundrels are sucking up all the good cases and clients out there. You know they must be, because they good ones certainly aren’t coming to you so they have to be going somewhere.

You’ve heard from speakers here about how they sell laundry detergent and shiny doo-dads. You’ve heard from speakers here who tell you about the cutting edge trends, even though they, like you, can barely feed their children. You’ve heard from speakers who are smart marketers, knowing that if they endear themselves to you, you will trust them enough to give them your last few dollars. 

But what they are all trying to tell you is that the special, hidden secret of marketing yourself as a lawyer on the internet is always position yourself one step below your competition. If they scream, you scream louder. If they stroll the boulevard in hot pants, you stroll it in tighter hot pants. If they claim to have 100 satisfied clients named “Justin T.,” you claim to have a thousand.

And so I have a joke to tell you:

Two men are walking through a forest.  Suddenly, they see a tiger in the distance, running towards them.  They turn and start running away.  But then one of them stops, takes some running shoes from his bag, and starts putting the on.

“What are you doing?” says the other man.  “Do you think you will run fast than the tiger with those?”

“I don’t have to run faster than the tiger,” he says.  “I just have to run faster than you.”

Whatever sleazy thing the virtual lawyer does that angers you, frustrates you, makes you wonder why you checked the “Yes, I’m a’coming” box on the Cooley response card, don’t let it get you down. Just lace up those running shoes and be one step sleazier, one lie better, and you become the winner in the race to the bottom.

Until, of course, the virtual lawyer will then slide in beneath you. But there is always something you can do to go lower.  Just don’t be like me and blush, or you will never make it in the ultra-competitive landscape of internet marketing. 

Now, go out and be the best virtual lawyer you can be. Remember, you can always go lower.

These are the times that test us. Will we prove ourselves worthy?

No one can dismiss that efforts of law enforcement in the capture of alleged Boston Marathon Bomber, murderer of 26-year-old MIT campus police officer Sean Collier, Dzhokhar Tsarnaev. They resisted the opportunity of killing him in a hail of return gunfire and took him alive.  Such patience is unfortunately rare, and to be recognized.

What becomes of him now?  There are angry people who want him to hang high now, while others want to try him first and then hang him high.  But just as the media, and even bloggers who claim to be the savior of the poor and downtrodden, in a rush to be the first to play the fool in the ether, were busy spreading insanely baseless accusations and misinformation without the shame to concern themselves with who they hurt, explanations of the process to come will feed the public’s ignorance and leave them less knowledgeable than they were when they knew nothing.

Within the past 24 hours, a few legal issues arose for public discussion. The first was the authority of the police to conduct warrantless and unconsented house searches to look for Tsarnaev.   Orin Kerr began an analysis of the legality:

Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way.

Note that caselaw on these sorts of facts are particularly unlikely for reasons beyond the fortunate rarity of their occurrence. The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. See Rakas v. Illinois , 439 U.S. 128 (1978). As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.

An often hidden concealed ploy in the law enforcement arsenal of interrogation is the two-step process, where agents question a person without benefit of Miranda warnings, usually under a pretense, in a deliberate effort to get the target to start talking and, if all goes well, say something he’ll regret. 

Only then, after an admission or confession will they administer Miranda and then get the person to repeat what he’s already said.  It’s incredibly easier to get someone to say it a second time than the first. After all, the harm’s been done. It can’t get any worse, right?

The 9th Circuit provides a pretty clear discussion of the two-step process in United States v. Barnes, What makes this opinion rather remarkable is that the FBI agents who questioned Barnes, a parolee, apparently did the one thing no one ever anticipates government agents doing: they told the truth and admitted what they were up to.

Agent Eckstein testified that he was familiar with Miranda’s requirements, believed Barnes would think he was not free to leave the meeting, and intended to question Barnes about his involvement in a crime. He further stated that the agents played the recorded phone conversation to demonstrate that they “were investigating [Barnes],” because “unless he believed that[,] he would not cooperate” with the agents and “would not talk to [them].” Agent Eckstein explained that he did not give the warnings at the beginning of the meeting because he “wanted to allay any concerns [Barnes] had that he was being arrested that day.”

Rarely will an agent openly admit his purpose was to trick his target into talking, and in furtherance of that purpose, intentionally failed to give Miranda warning because “they think they’re under arrest because they equate being Mirandized with being under arrest.” 

One might think that the intentional failure to provide required notice would be the end of the question, but not quite.  As the remedy for failure to Mirandize is suppression of statements taken during a custodial interrogation without saying the magic words, Agent Eckstein’s tricking Barnes into admitting involvement in a narcotics transaction pre-Miranda was itself inadmissible, but accomplished two critical things: first, the agent obtained the information he sought, and second, he got the words out of Barnes’ mouth.

That’s the key. Once a target tells the agents what they want to know, getting him to repeat it is a breeze. After all, he already said it. They already heard it. It’s too late.

Except there is still that darned Miranda thing.  As Elie Mystal argues at Above The Law, Miranda matters. And so, the second step of the process follows:

There was no break or dividing point in the interrogation. Barnes was interrogated in the same place before and after the warnings. After Barnes waived his rights, the agents immediately resumed the interrogation and continued questioning Barnes for approximately two hours. The agents apparently stopped only long enough to read Barnes the “advice of rights” form and allow him to waive his rights.

So the deliberate two-step process, deliberately used to circumvent the purpose of Miranda, was enough to suppress the statements, right?  Well, still not quite.  Had the agents broken the interrogation into two discrete parts, with a gap between them that would have allowed Barnes to reflect on what he was doing and allow him time for the Miranda warnings to sink in, it could have been sufficiently attenuated so that the second step of the interrogation would have been allowed. Cool trick, right?

But the agents here didn’t bother to take a breather, and plowed ahead.

This timing particularly reduces the impact of the recitation of constitutional rights. See Seibert, 542 U.S. at  3 (“Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent . . . .”). It is clear that Barnes admitted his involvement in the crime before he received the warnings and that his post-warning confession was merely an elaboration on his pre-warning admission of guilt.

And failing to allow the target that gap of time, as if he would deeply contemplate the significance of repeating a confession in relation to his rights under Miranda, as opposed to thinking about how screwed he already was and what he could say now to unscrew himself, meant that the statements would be suppressed, right?  Well, not quite.

Finally, the agents took no curative measures to mitigate their error. They did not, for example, take a substantial time break in the interrogation or warn Barnes that what he had said before the warnings could not be used against him. See id. at 616. (“When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used.”); id. at 622 (Kennedy, J., concurring in the judgment) (“Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.”); see also Williams, 435 F.3d at 1161 (recognizing that a break in time between two interrogations could serve as an appropriate curative measure). Taken together, these factors demonstrate that the warnings Barnes received were not effective and that his post-warning confession should have been suppressed.

Certainly, the agents could have advised Barnes that his prior statements couldn’t be used against him because of their deliberate failure to give Miranda warnings, but that wouldn’t have been any fun and, similarly certain, wouldn’t have helped the agents to get Barnes to repeat his confession post-warning. And so they failed to “cure” their failure to give warnings, their final chance to circumvent suppression.

Had the agents tailored their testimony at any stage with regard to their extracting the confession from Barnes, and there was clearly no shortage of opportunity, chances are pretty good that they would have gotten the defendant’s statements in and undermined Miranda.  That they told the truth about what they did and why, even if it was done to violate Barnes’ rights.

For those who believe that videotaping confessions is the solution to all coercion problems, consider how this would have played out had the agents only videotaped the post-Miranda portion of the interrogation and not been as forthright about their scheme.  It would have been devastating.

H/T Spencer Neal

Jan 9, 2009: Derrick Jones, 17, Black, Martinsville, Virginia

Jan 11, 2009: Rodolfo Lepe, 31, Hispanic, Bakersfield, California

Jan 22, 2009: Roger Redden, 52, Caucasian, Soddy Daisy, Tennessee-

Feb 2, 2009: Garrett Jones, 45, Caucasian, Stockton, California

Feb 11, 2009: Richard Lua, 28, Hispanic, San Jose, California

Feb 13, 2009: Rudolph Byrd, 37, Black, Thomasville, Georgia

Feb 13, 2009: Michael Jones, 43, Black, Iberia, Louisiana

Feb 14, 2009: Chenard Kierre Winfield, 32, Black, Los Angeles, California

Feb 28, 2009: Robert Lee Welch, 40, Caucasian, Conroe, Texas

Mar 22, 2009: Brett Elder, 15, Caucasian, Bay City, Michigan

Mar 26, 2009: Marcus D. Moore, 40, Black, Freeport, Illinois

Apr 1, 2009: John J. Meier Jr., 48, Caucasian, Tamarac, Florida

Apr 6, 2009: Ricardo Varela, 41, Hispanic, Fresno, California

Apr 10, 2009: Robert Mitchell, 16, Black, Detroit, Michigan

Apr 13, 2009: Craig Prescott, 38, Black, Modesto, California

Apr 16, 2009: Gary A. Decker, 50, Black, Tuscon, Arizona

Apr 18, 2009: Michael Jacobs Jr., 24, Black, Fort Worth, Texas

Apr 30, 2009: Kevin LaDay, 35, Black, Lumberton, Texas

May 4, 2009: Gilbert Tafoya, 53, Caucasian, Holbrook, Arizona

May 17, 2009: Jamaal Valentine, 27, Black, La Marque, Texas

May 23, 2009: Gregory Rold, 37, Black, Salem, Oregon

Jun 9, 2009: Brian Cardall, 32, Caucasian, Hurricane, Utah

Jun 13, 2009: Dwight Madison, 48, Black, Bel Air, Maryland

Jun 20, 2009 Derrek Kairney, 36, Race: Unknown, South Windsor, Connecticut

Jun 30, 2009, Shawn Iinuma, 37, Asian, Fontana, California

Jul 2, 2009, Rory McKenzie, 25, Black, Bakersfield, California

Jul 20, 2009, Charles Anthony Torrence, 35, Caucasian, Simi Valley, California

Jul 30, 2009, Johnathan Michael Nelson, 27, Caucasian, Riverside County, California

Aug 9, 2009, Terrace Clifton Smith, 52, Black, Moreno Valley, California

Aug 12, 2009, Ernest Ridlehuber, 53, Race: Unknown, Greenville, South Carolina

Aug 14, 2009, Hakim Jackson, 31, Black, Philadelphia, Pennsylvania

Aug 18, 2009, Ronald Eugene Cobbs, 38, Black, Greensboro, North Carolina

Aug 20, 2009, Francisco Sesate, 36, Hispanic, Mesa, Arizona

Aug 22, 2009, T.J. Nance, 37, Race: Unknown, Arizona City, Arizona

Aug 26, 2009, Miguel Molina, 27, Hispanic, Los Angeles, California

Aug 27, 2009, Manuel Dante Dent, 27, Hispanic, Modesto, California

Sep 3, 2009, Shane Ledbetter, 38, Caucasian, Aurora, Colorado

Sep 16, 2009, Alton Warren Ham, 45, Caucasian, Modesto, California

Sep 19, 2009, Yuceff W. Young II, 21, Black, Brooklyn, Ohio

Sep 21, 2009, Richard Battistata, 44, Hispanic, Laredo, Texas

Sep 28, 2009, Derrick Humbert, 38, Black, Bradenton, Florida

Oct 2, 2009, Rickey Massey, 38, Black, Panama City, Florida

Oct 12, 2009, Christopher John Belknap, 36, Race: Unknown, Ukiah, California

Oct 16, 2009, Frank Cleo Sutphin, 19, Caucasian, San Bernadino, California

Oct 27, 2009, Jeffrey Woodward, 33, Caucasian, Gallatin, Tennessee

Nov 13, 2009, Herman George Knabe, 58, Caucasian, Corpus Christi, Texas

Nov 14, 2009, Darryl Bain, 43, Black, Coram, New York

Nov 16, 2009, Matthew Bolick, 30, Caucasian, East Grand Rapids, Michigan

Nov 19, 2009, Jesus Gillard, 61, Black, Bloomfield Hills, Michigan

Nov 21, 2009, Ronald Petruney, 49, Race: Unknown, Washington, Pennsylvania

Nov 27, 2009, Eddie Buckner, 53, Caucasian, Chattanooga, Tennessee

Dec 11, 2009, Andrew Grande, 33, Caucasian, Oak County, Florida

Dec 11, 2009, Hatchel Pate Adams III, 36, Black, Hampton, Virginia

Dec 11, 2009, Paul Martin Martinez, 36, Hispanic, Roseville, California

Dec 13, 2009, Douglas Boucher, 39, Caucasian, Mason, Ohio

Dec 14, 2009, Linda Hicks, 62, Black, Toledo, Ohio

Dec 19, 2009, Preston Bussey III, 41, Black, Rockledge, Florida

Dec 20, 2009, Michael Hawkins, 39, Caucasian, Springfield, Missouri

Dec 30, 2009, Stephen Palmer, 47, Race: Unknown, Stamford, Connecticut

Jan 6, 2010, Delano Smith, 21, Black, Elkhart, Indiana

Jan 17, 2010, William Bumbrey III, 36, Black, Arlington, Virginia

Jan 20, 2010, Kelly Brinson, 45, Race: Unknown, Cincinnati, Ohio

Jan 27, 2010, Joe Spruill, Jr., Black, Goldsboro, North Carolina

Jan 28, 2010, Patrick Burns, 50, Caucasian, Sangamon County, Illinois

Jan 28, 2010, Daniel Mingo, 25, Black, Mobile, Alabama

Feb 4, 2010, Mark Morse, 36, Caucasian, Phoenix, Arizona

Mar 4, 2010, Roberto Olivo, 33, Hispanic, Tulare, California

Mar 5, 2010, Christopher Wright, 48, Race: Unknown, Seattle, Washington

Mar 10, 2010, Jaesun Ingles, 31, Black, Midlothian, Illinois

Mar 10, 2010, James Healy Jr., 44, Race: Unknown, Rhinebeck, New York

Mar 20, 2010, Albert Valencia, 31, Hispanic, Downey, California

Apr 10, 2010, Daniel Joseph Barga, 24, Caucasian, Cornelius, Oregon

Apr 30, 2010, Adil Jouamai, 32, Moroccan, Arlington, Virginia

May 9, 2010, Audreacus Davis, 29, Black, Atlanta, Georgia

May 14, 2010, Sukeba Olawunmi, 39, Race: Unknown, Atlanta, Georgia

May 24, 2010, Efrain Carrion, 35, Hispanic, Middletown, Connecticut

May 27, 2010, Carl Johnson, 48, Caucasian, Baltimore, Maryland

May 29, 2010, Jose Martinez, 53, Hispanic, Waukegan, Illinois

May 31, 2010, Anastasio Hernández Rojas, 42, Hispanic, San Ysidro, California

Jun 8, 2010, Terrelle Houston, 22, Black, Hempstead, Texas

Jun 12, 2010, Curtis Robinson, 34, Black, Albuquerque, New Mexico

Jun 13, 2010, William Owens, 17, Race: Unknown, Homewood, Alabama

Jun 14, 2010, Jose Alfredo Jimenez, 42, Hispanic, Harris County, Texas

Jun 15, 2010, Michael White, 47, Black, Vallejo, California

Jun 22, 2010, Daniel Sylvester, 35, Caucasian, Crescent City, California

July 5, 2010, Damon Falls, 31, Black, Oklahoma City, Oklahoma

July 5, 2010, Edmund Gutierrez, 22, Hispanic, Imperial, California

July 8, 2010, Phyllis Owens, 87, Race: Unknown, Clackamas County, Oregon

July 9, 2010, Marvin Booker, 56, Race: Black, Denver, Colorado

July 12, 2010, Anibal Rosario-Rodriguez, 61, Hispanic, New Britain, Connecticut

July 15, 2010, Jerome Gill, Race: Unknown, Chicago, Illinois

July 18, 2010, Edward Stephenson, 46, Race: Unknown, Leavenworth, Kansas

July 23, 2010, Jermaine Williams, 30, Black, Cleveland, Mississippi

Aug 1, 2010, Dennis Sandras, 49, Race: Unknown, Houma, Louisiana

Aug 9, 2010, Andrew Torres, 39, Hispanic, Greenville, South Carolina

Aug 18, 2010, Martin Harrison, 50, Caucasian, Dublin, California

Aug 19, 2010, Adam Disalvo, 30, Caucasian, Daytona Beach, Florida

Aug 20, 2010, Stanley Jackson, 31, Black, Washtenaw County, Michigan

Aug 24, 2010, Michael Ford, 50, Black, Livonia, Michigan

Aug 25, 2010, Eduardo Hernandez-Lopez, 21, Hispanic, Las Vegas, Nevada

Aug 31, 2010, King Hoover, 27, Black, Spanaway, Washington

Sep 4, 2010, Adam Colliers, 25, Caucasian, Gold Bar, Washington

Sep 10, 2010, Larry Rubio, 20, Race: Unknown, Leemore, California

Sep 12, 2010, Freddie Lockett, 30, Black, Dallas, Texas

Sep 16, 2010, Gary L. Grossenbacher, 48, Race: Unknown, Oklahoma City, Oklahoma

Sep 18, 2010, David Cornelius Smith, 28, Black, Minneapolis, Minnesota

Sep 18, 2010, Joseph Frank Kennedy, 48, Caucasian, La Mirada, California

Oct 4, 2010, Javon Rakestrau, 28, Black, Lafayette Parish, Louisiana

Oct 7, 2010, Patrick Johnson, 18, Caucasian, Philadelphia, Pennsylvania

Oct 12, 2010, Ryan Bain, 31, Caucasian, Billings, Montana

Oct 14, 2010, Karreem Ali, 65, Black, Silver Spring, Maryland

Oct 19, 2010, Troy Hooftallen, 36, Caucasian, Punxsutawney, Pennsylvania

Nov 4, 2010, Eugene Lamott Allen, 40, Race: Unknown, Wilmington, Delaware

Nov 6, 2010, Robert Neill, Jr., 61, Caucasian, Mount Joy, Pennsylvania

Nov 7, 2010, Mark Shaver, 32, Caucasian, Brimfield, Ohio

Nov 23, 2010, Denevious Thomas, 36, Black, Albany, Georgia

Nov 26, 2010, Rodney Green, 36, Black, Waco, Texas

Nov 27, 2010, Blaine McElroy, 37, Race: Unknown, Jackson County, Mississippi

Dec 2, 2010, Clayton Early James, Age: Unknown, Race: Unknown, Elizabeth City, North Carolina

Dec 11, 2010, Anthony Jones, 44, Race: Unknown, Las Vegas, Nevada

Dec 12, 2010, Linel Lormeus, 26, Black, Naples, Florida

Dec 20, 2010, Christopher Knight, 35, Black, Brunswick, Georgia 

Dec 31, 2010, Rodney Brown, 40, Black, Cleveland, Ohio 

Jan 5, 2011, Kelly Sinclair, 41, Race: Unknown, Amarillo, Texas

Feb 5, 2011, Robert Ricks, 23, Black, Alexandria, Louisiana

March 15, 2011, Brandon Bethea, 24, Black, Harnett County, North Carolina

Apr 3, 2011, Jairious McGhee, 23, Black, Tampa, Florida

Apr 22, 2011, Adam Spencer Johnson, 33, Caucasian, Orlando, Florida

Apr 23, 2011, Ronald Armstrong, 43, Race: Unknown, Pinehurst, North Carolina

Apr 25, 2011, Kevin Darius Campbell, 39, Race: Unknown, Tallahassee, Florida 

May 1, 2011, Marcus Brown, 26, Black, Waterbury, Connecticut

May 6, 2011, Matthew Mittelstadt, 56, Caucasian, Boundary County, Idaho

May 11, 2011, Allen Kephart, 43, Caucasian, San Bernadino County, California 

June 13, 2011, Howard Hammon, 41, Caucasian, Middleburg, Ohio 

June 22, 2011, Otto Kolberg, 55, Caucasian, Waycross, Georgia 

June 28, 2011, Dalric East, 40, Black, Montgomery County, Maryland

July 5, 2011, Kelly Thomas, 37, Caucasian, Fullerton, California

July 10, 2011, Joshua Nossoughi, 32, Caucasian, Springfield, Missouri

July 19, 2011, Alonzo Ashley, 29, Black, Denver, Colorado 

July 21, 2011, La’Reko Williams, 21, Black, Charlotte, North Carolina 

July 30, 2011, Donald Murray, 39, Caucasian, Westland, Michigan

August 4, 2011, Pierre Abernathy, 30, Black, San Antonio, Texas

August 6, 2011, Everette Howard, 18, Black, Cincinnati, Ohio

August 6, 2011, Debro Wilkerson, 29, Black, Prince William County, Maryland

August 6, 2011, Gregory Kralovetz, 50, Caucasian, Kaukauna, Wisconsin 

August 12, 2011, Joseph Lopez, 49, Hispanic, Santa Barbara, California

August 17, 2011, Roger Chandler, 41, Caucasian, Helena, Montana 

August 21, 2011, Montalito McKissick, 37, Black, Oklahoma City, Oklahoma

August 24, 2011, Michael Evans, 56, Race: Unknown, Fayetteville, North Carolina

August 30, 2011, Nicholas Koscielniak, 27, Caucasian, Lancaster, New York

September 11, 2011, Tyree Sinclair, 31, Black, Corpus Christi, Texas

September 13, 2011, Damon Barnett, 44, Caucasian, Fresno, California 

September 17, 2011, Richard Kokenos, 27, Caucasian, Warren, Michigan

September 24, 2011, Bradford Gibson, 35, Black, Mt. Pleasant, Michigan

September 24, 2011, Donacio Rendon, 43, Race: Unknown, Lubbock, Texas

September 29, 2011, Howard Cook, 35, Black, York, Pennsylvania

October 4, 2011, Glenn Norman, 46, Caucasian, Camden County, Missouri

October 9, 2011, Darnell Hutchinson, 32, Black, San Leandro, California

October 31, 2011, Chad Brothers, 32, Caucasian, Colonie, New York

November 6, 2011, Darrin Hanna, 43, Black, North Chicago, Illinois

November 13, 2011, Ronald Cristiano, 51, Caucasian, Bridgeport, Connecticut

November 15, 2011, Jonathan White, 29, Black, San Bernardino, California

November 22, 2011, Roger Anthony, 61, Black, Scotland Neck, North Carolina

December 16, 2011, Marty Atencio, 44, Hispanic, Phoenix, Arizona

December 22, 2011, Wayne Williams, 27, Black, Houma, Louisiana

January 15, 2012, Daniel Guerra, 24, Hispanic, Ft. Worth, Texas

February 29, 2012, Raymond Allen, 34, Black, Galveston, Texas

March 5, 2012, Nehemiah Dillard, 29, Black, Gainesville, Florida

March 12, 2012, Jersey Green, 37, Black, Aurora, Illinois 

March 19, 2012, James Barnes, 38, Caucasian, Pinellas County, Florida

April 10, 2012, Bobby Merrill, 38, Black, Saginaw, Michigan

April 21, 2012, Angel Heraldo, 41, Hispanic, Meriden, Connecticut 

April 22, 2012, Bruce Chrestensen, 52, Caucasian, Grass Valley, California

May 10, 2012, Damon Abraham, 34, Black, Baldwin, Louisiana

June 9, 2012, Randolph Bonvillian, 41, Caucasian, Houma, Louisiana

June 20, 2012, Macadam Mason, 39, Caucasian, Thetford, Vermont 

June 30, 2012, Victor Duffy, 25, Black, Tukwila, Washington

July 1, 2012, Corey McGinnis, 35, Black, Cincinnati, Ohio

July 5, 2012, Sampson Castellane, 29, Native American, Fife, Washington 

September 1, 2012, Denis Chabot, 38, Caucasian, Houston, Texas 

September 14, 2012, Bill Williams, 60, Caucasian, Everett, Washington

November 29, 2012, Robert Maurina, 46, Caucasian, West Allis, Wisconsin

December 13, 2012, Philip Coleman, 38, Black, Chicago, Illinois

December 25, 2012, Kevin Culp, 29, Black, Richmond, Washington

January 1, 2013, Andrew Layton, 26, Caucasian, Mankato, Minnesota

February 23, 2013, Christopher Parker, 33, Caucasian, Spokane, Washington

This is a list of 186 deaths attributed to Tasers since 2009. Since 2001, the number climbs to 537.  For a non-lethal weapon, that’s a lot of lethal.  Tasers are not a  tool of convenience for cops who don’t feel like running, waiting or calming.  They may be the easy way to bring a job to a quick close, but it may come at the cost of a life. 

Tasers are not an easy way to teach a perp who’s boss, how to behave, how to respect a police officer’s authority.

Tasers have a purpose, it being far better to stun a person who presents a risk of harm to himself or others rather than put a bullet in his chest, but that’s as far as it goes.  They are usually less than lethal. They are not always less than lethal, and no  phony cause of death is going to change the fact that it killed some kid tased a dozen times. 

Is it really so important to make a cop’s life easier by acquiescing in the needless use of force, the infliction of pain, the potential for death?  Tasers are a weapon, and should only be allowed when a use of force is lawfully justified.  Let’s cut the crap and stop sanctioning the use of Tasers because they’re convenient. It’s not a good enough reason to kill someone.

H/T Electronic Village

In a way, it was a huge win for the defense when the Supreme Court rejected a per se rule to allow police to take an accused drunk driver to the hospital to have a blood draw done without a warrant. Smart money was on a bright line rule that would allow blood draws without warrants. Some because they bought the argument that the evidence of blood alcohol was dissipating every second of needless delay, even though that’s not quite the way blood alcohol works. Others, including me, because it wouldn’t matter much, since no judge has ever turned down a warrant for a blood draw anyway.

But the Supremes surprised us, at least a little bit, when it came to smacking the papers with that big, old “approved” stamp.  In what ultimately amounts to a 5-4 decision with some bumps along the road, the majority in  Missouri v McNeely held there was no reason why the natural “loss of evidence” by dissipating alcohol in the blood stream constituted a per se exigent circumstance dispensing with the need for a warrant to draw blood.

Sounds good so far, right?  And it is.  Yet, more so on a doctrinal level than practical one.

The next point made by Justice Sotomayor for the gang was that the Fourth Amendment required a warrant if one could be reasonably obtained (and implicitly, not refused, though no one seriously imagines any judge refusing a warrant).  The opinion speaks to the new normal of telephone warrants and the means to get one pretty much anywhere, whether from the cruiser on the way to the hospital or while the driver is cuffed to the gurney with nurse hovering above, needle in hand.  Tech saved us from the rule, if not the needle.

The Court resorted to the dreaded totality of the circumstances test, where the person who tells the first best story gets whatever he wants.  A warrant is required, Judge Sotomayor explained, unless it was unreasonable to get one under the totality of the circumstances.  So they either get a warrant or, say if a judge isn’t around to sign off on one, they get to do it anyway.  The Fourth Amendment lives.

The core of the prosecution’s argument in McNeely was that the evidence of guilt, the alcohol in the bloodstream that would give them a number to conclusively prove guilt, would be destroyed over time.  The loss of BAC (blood alcohol content) was stated to be between .02% and .015% per hour based on the gender, weight and alcohol experience of the person.  While drunk driving isn’t an area of my expertise, my understanding is that it doesn’t exactly work that way, and in fact the BAC may increase for a period of time, even up to six hours, from when the last drink was had. The decision mentioned nothing about this, and suggests (again) that the Supreme Court specialists were more expert in arguing than drunk driving.  Any DUI experts out there should put in their two cents on this point.

The problem is that a driver may have, in fact, had a lower BAC at the time he was driving than at the time the blood was drawn.  If a guy downs a dozen shots in an hour, hops into his Chevy, takes off and is stopped minutes later, his BAC at the time he’s stopped may well be below the legal limit, while a few hours later, after warrant is obtained or the cops come up with a good enough story to justify their failure to get one, his BAC will be sky high.

There was no good to come of this case no matter what. There is no suggestion that the Court had any qualms about the forced use of needles stuck under the skin, into the bodies, of people for the purpose of collecting evidence to convict them.  While they didn’t quite make light of it, they also noted that blood draws are so routine and painless that it’s not a big enough deal to break a sweat over.  

The language offers some hope that the majority won’t be as sanguine about blood draws by police at roadside, having noted what a good job trained hospital staff do taking blood as opposed to just anybody.  The question of whether cops trained to take blood on their own, strapping the defendant across the hood of the cruiser while sticking needles into them, will eventually reach the court, and hopefully this language reflects a reluctance to let just anybody do it.  It also bodes well for the use of forced catheterization, which will likely make for a very awkward statement of facts some day.

But the bottom line is that the use of blood draws for the sole purpose of obtaining evidence of drunk driving will continue unabated.  The police will be required to get a warrant unless they can’t, but either way the needle goes in and the blood gets drawn.  In the absence of a warrant, the defense can move to suppress and test whether the cop’s story is good enough, but the totality of the circumstances test will control, with the determining factor being the reasonableness of the officer’s belief that he could not obtain a warrant within a reasonable period of time.  Don’t hate the double “reasonable.” 

Of course, if you don’t like the way this decision went, there is always the alternative of not driving drunk. Of the many tests that can be done to prove guilt, the blood draw can also prove that an individual’s BAC was below the legal limit. Then the cop is reduced to the usual descriptions and worthless field sobriety test, like the old days.  But with the evidence of a BAC below the legal limit on the defendant’s side, the test could go something like this: